Peter J. Strauss Visionary, Architect, Guiding Light

National Academy of Elder Law Attorneys • Volume 22 • Issue 6 • 2010

Also Inside:

• Converting to Paperless: A Trusts • Penalty-Free Withdrawals from Qualified and Estates Attorney’s Perspective • Plans for Those Pre-Age 59½

• Appointing a Guardian in America: How Do We Get There?

Peter J. StraussVisionary, Architect, Guiding Light

http://www.naela.org

I am the author of the leading consumer guide to Medicaid planning, How to Protect Your Family’s Assets from Devastating Nursing Home Costs: Medicaid Secrets. Currently in its fourth (2010) edition, this book has been exceptionally well received by the public as well as professionals. Since the book has a national focus, I am now seeking well-qualifi ed attorneys to become contributing authors for their respective states. In exchange for your editing the book as to state-specifi c changes, and the payment of a modest fee, you will have the exclusive right to market your special state edition in your state.

Use your books to market your practice.

Use or sell them at seminars, talks, give to local assisted living facilities and libraries, display them on your fi rm’s website, use as appointment give-aways, etc.

Being an author gives you immediate credibility and exper-tise in a potential client’s eyes.

View the complete Table of Contents and Index here: www.MedicaidSecrets.com

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I would fi rst have to accept you as being suffi ciently qualifi ed to be a co-author.

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Your special state edition will include your name as co-author, plus your photo and mini-bio on the back cover, next to mine.

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Co-author a book on Medicaid planning How it works:

Co-Authors Wanted

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FEATURES

DEPARTMENTS 5 President’s Message Ourselves ByRuthA.Phelps,CELA,CAP

6 Executive Director’s Message The State of NAELA ByPeterG.Wacht,CAE

28 NAELA, Chapters, and Sections Calendar of Events/NAELA Telephonic Programming

28 New CELAs

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NAELA News has two complementary purposes: to communicate the activities, goals, and mission of its publisher, the National Academy of Elder Law Attorneys; and simultaneously, to seek out and publish information and diverse views related to Elder Law and Special Needs Law.The views expressed in the articles are those of the authors and do not necessarily reflect the policies of the publisher. Statements of fact are solely the responsibility of the author.

8 Featured Member Peter J. Strauss Visionary, Architect, Guiding Light

ByTeresaMarrero,Esq.

12 Appointing a Guardian in America: How Do We Get There?

ByPeterJ.Strauss,Esq.

16 Medicare Set-Aside Arrangements MedicareTaskForceReport

17 Congratulations to the Winners of NAELA’s 2010 Student Writing Competition

18 Professional Development/Professional ManagementConverting to Paperless: A Trusts and Estates Attorney’s Perspective

ByMerwynMiller,Esq.

20 NAELA’s SR PAC: 2010 Midterm Election Report

ByKerryPeck,Esq.andBrianW.Lindberg

22 Penalty-Free Withdrawals from Qualified Plans for Those Pre-Age 59½

ByThomasJ.Murphy,Esq.

26 Language and the Elderly: Elderspeak and Beyond ByJoshArd,Esq.

27 NAELA Student Chapters

30 Special Needs Law SectionWeb Site of Interest

ByMarthaC.Brown,CELA

NAELA News is published by the National Academy of Elder Law Attorneys, Inc.

1577 Spring Hill Road, Suite 220Vienna, VA 22182

703-942-5711 Fax: 703-563-9504www.NAELA.org

Copyright © 2010 National Academy of Elder Law Attorneys, Inc. Any use of the contents of this publication without the express written permission of the publisher is strictly prohibited.

Articles appearing in NAELA News may not be regarded as legal advice. The nature of Elder and Special Needs Law practice makes it imperative that local law and practice be consulted before advising clients. Statements of fact and opinion are the responsibility of the author and do not imply an opinion or endorsement on the part of the officers or directors of NAELA unless otherwise specifically stated as such.

Vo lume 22 • Issue 6

P U B L I C AT I O N S C H A I RA. Frank Johns, CELA, CAP

Greensboro, N.C.

E D I T O R - I N - C H I E FRuth E. Ratzlaff, Esq.

Kingsburg, Calif.

E D I T O R SRobert C. Anderson, CELA

Marquette, Mich.Josh Ard, Esq.

Williamston, Mich.Kristi Vetri, Esq. Rapid City, S.D.

P R O F E S S I O N A L D E V E L O P M E N T / P R O F E S S I O N A L M A N A G E M E N T E D I T O R S

Judith D. Grimaldi, CELA Brooklyn, N.Y.

Brian Mahoney, Esq. Canton, Mass.

Teresa Marrero, Esq.New York, N.Y.

Leonard E. Mondschein, CELA Miami, Fla.

Y O U N G / N E W AT T O R N E Y S S E C T I O N L I A I S O NAudrey Heidt, Esq.

Waltham, Mass.

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http://www.naela.org

NAELA has created a federal political action committee, Senior Rights PAC, to increase our recognition and effectiveness in the public policy arena. Please join your fellow NAELA members in this exciting time

as NAELA actively advocates for our country’s seniors and persons with special needs!

Name ________________________________________________ Member ID ____________________________________________

Occupation ___________________________________________ _____________________________________

Employer ___________________________________________________________________________________________________

Address _____________________________________________________________________________________________________

City _________________________________________________ State _______________________ Zip Code _________________

Phone ________________________________ Fax ____________________________ E-mail ________________________________

Contributiono I wish to contribute $____________, as denoted below:o Pacesetter: $5,000o Benefactor: $2,500 - $4,999 o Supporter: $500 - $999o Friend: $1,000 - $2,499 o Patron: $1 - $499

Payment Detailso Enclosed is my personal check, payable to NAELA Senior Rights PAC

Personal checks are preferred. Corporate checks are not acceptable. If this contribution is drawn on a partnership (including LLC) account, the contribution should be attributed to:

_______________________________________________________________________________________________________ If no name is indicated, NAELA will attribute the contribution to the partner who is the signatory on the contribution. This person’s account should be charged with the contribution on the partnership’s books.

o Charge my credit card, details as follows: o American Express o Visa o MasterCard

Card Number ________________________________________________________ Expiration Date ______________________

Signature _______________________________________________________________________________________________ I certify that this is a personal or firm (partnership) credit card, not a corporate card.

Charge my credit card in ___ installments of $ ______ every ______ month(s) for a total amount of $____________

Please return Commitment Form and payment to: NAELA SR-PAC, 1577 Spring Hill Road, Suite 220, Vienna, VA 22182 / Fax: 703-563-9504

Thank you for your generous support!

The purpose of the SR-PAC is to help elect candidates who will support the goals and objectives of NAELA. SR-PAC funds are used to make contributions to can-didates for public office. The contribution amounts listed are only suggestions; more or less may be contributed (subject to a limit of $5,000 per donor per calendar year). The amount given, or the refusal to give, will not benefit or disadvantage a member. You may refuse to contribute without reprisal. Only members of NAELA may be solicited to contribute. We may not accept contributions from corporations, foreign nationals, federal government contractors, or by one person in the name of another person, nor may we accept contributions of more than $5,000 per calendar year from any one contributor. Contributions are not tax deductible. Federal law requires us to obtain and report the name, address, occupation and employer of each contributor who gives more than $200 in any calendar year.

NAELA Senior Rights PACContribution Commitment Form

Political Action Committee

SENIORRIGHTS

NAELA

Who contacted you about contributing?

5

Ourselves Ruth A. Phelps, CELA, CAP

Like the Kenny Chesney song says: “Don’t blink — just like that you’re six years old and you

take a nap, and you wake up, you’re 25.”1 Where does the time go? We try to savor each day, but with work, spouses, children, soccer, NAELA, our churches and temples … where does the time

go? How do we actually “stop, and smell the roses” rather than just glance quickly as we drive by?

You are the most important person in your life. We need to take care of ourselves so we can take care of others, whether family, friends, or clients. How do we do that?1. Get enough sleep. Some of you are fortunate to only

need four to five hours of sleep a night. I’m not one of you. I need eight hours, and sometimes that is hard to get. Make sure you are well rested.

2. Eat right. I know, now I’m sounding like your mother. Eat your vegetables. Cut down on caffeine and sugar (and all those things that are even worse for you). Drink lots of water. Yes, all the boring, repetitive rules. But when you follow them, you feel better.

3. Exercise regularly. You will feel better, have more en-ergy, sleep better, and get more done. You’ll look better too.

4. Save part of every paycheck. It isn’t how much you make that will count, it’s how much you manage to hold on to. Einstein recognized the tremendous power of compounding. Save early in life, save regularly, and you’ll be amazed at how it adds up. Start small, just $25 per month. Increase it by $5 per month each year, or more if you have a good year. Pay cash, and avoid debt, especially credit card debt.

5. Be kind, considerate, and civil. Treat people gently. You want people to look forward to your comings in, not your goings out. Treat people the way you hope they will treat your mother.

6. Be honest and ethical. Learn to say “I don’t know.” It is hard, but very freeing. Then people trust that you do know what you are telling them. Read your state Bar’s ethical rules, and the NAELA Aspirational Standards

1 Kenny Chesney, Don’t Blink.

for the Practice of Elder Law. Then follow them. We need to be able to count on each other to do the right thing. Become known as a person who does the right thing, even if it means that you don’t always “get the job done.”

7. Take time to be a good companion to your spouse or significant other, a good parent, and a best friend. In these busy days of our lives, our home is our most pre-cious commodity. Turn off the television. Turn off the video games. Talk to the members of your family. Play a game with them (not a video game!). Take a walk or a bike ride. Laugh together.

8. Have an exit strategy. What is your plan? You need a plan, so that you know where you are going and how you will get there. Review your plan annually. It should include:

a. Your target monthly income after you stop working, from all sources

b. Your target savings c. Your target date to pay off your home

NAELA can’t help you get enough sleep or make you eat your vegetables, but your NAELA membership does offer you a way to interact with other Elder and Special Needs Law attorneys. Find out from your fellow members how they handle the stress of everyday life; how they keep their lives in balance. Attend NAELA meetings, join your State Chapter, or “talk” with other members through the listserv.

When you take care of yourself, you feel better about yourself and the world around you. When you feel good about yourself and where you are going, it shows. It helps put you in position to better serve your clients and those you care about, and makes you a happier person. n

PRESIDENT’S MESSAGE

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Find out from your fellow members how they handle the stress of everyday life; how they keep their lives in balance. Attend NAELA meetings, join your State Chapter, or “talk” with other members through the listserv.

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EXECUTIVE DIRECTOR’S MESSAGE

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As we come to the end of the year, there’s a natu-ral tendency to look back at the past 12 months and evaluate the success of that time period, both personally and professionally. Admittedly,

as a history major, I agree that focusing on the past can be useful to a point. But in all honesty I tend not to look back. Once something has been accomplished, I cross it off the list and move on to the many other items that still need to be completed. Whether that’s good or bad is for others to judge. Kathy, my wife, likely thinks it’s a failing. She has the incredible ability to recall word for word what I said in a specific conversation three months ago, right down to the minute. I, on the other hand, will have no memory what-soever of the conversation, which frustrates her to no end.

Perhaps that’s why I tend to look forward, and I see a real value in that. This fall, my son’s soccer team has been playing in a more difficult division. Because the quality of the competition has improved, as a coach I’ve been work-ing with the boys on changing how they play the game. They’re all great athletes, but that isn’t enough anymore. If we’re going to succeed, the boys need to improve their technical skill, their touch, the speed of their decision making. It’s not easy. In fact, we haven’t won a game in the league all season, and we’ve lost several heartbreakers. But each one of the boys is clearly becoming a better player, and as a team we’re playing better soccer than we ever have before. I have no doubt that in the coming months every-thing will click, so I’m really looking forward to next sea-son because I can see where all our hard work is taking us.

I take a similar perspective with NAELA. We’ve accom-plished a lot in the last year:• Even with the weak economy, NAELA’s membership

increased more than four percent. • Many of NAELA’s State Chapters have increased their

membership as well, and they’re offering greater value to their members through strong educational programs and ways for peers to communicate and interact on a more local level.

• More and more members are taking advantage of our virtual education (telephonic and online) opportunities.

• More members are participating on the national listserv. • We’ve started to rebuild NAELA’s financial reserve so

that we can increase the resources available for future projects.

• We’ve created seven new brochures to help you explain health care reform to your clients, and best of all you can customize the brochures to include your contact information.

• And we have a new website that provides greater func-tionality and easier access to the information you need.In short, we have members, we have strong cash flow,

and we remain true to our mission. But I’m really looking forward to next year. Let me tell you why: • With the goal of increasing the value of NAELA mem-

bership, we continue to explore programs and services that might benefit you. One possibility involves a proposed NAELA-sponsored insurance program, with offerings ranging from health to professional liability and fiduciary insurance at a discount for NAELA members.

• NAELA’s three national meetings, all with strong educa-tional content and many opportunities to interact with and learn from your peers, are all rounding into top form for 2011. We begin with the UnProgram in January, which is the epitome of self-directed learning, followed by the Annual National Conference in May in Las Vegas and the Advanced Fall Institute in November in Boston.

• Work on the new website continues as we integrate sev-eral new social media features that should help NAELA members connect with their colleagues. As an example, each NAELA Section will have separate space on the website so that they can share information and commu-nicate with Section members more easily. And all of the Sections will be hosting regular conference calls during the year for their members.

EXECUTIVE DIRECTOR’S MESSAGEThe State of NAELA Peter G. Wacht, CAE

In short, we have members, we have strong cash flow, and we remain true to our mission. But I’m really looking forward to next year. Let me tell you why.

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• The Academy will again produce two NAELA Journals during the year, but the spring edition really stands out with a concentration on health care reform and how it affects your clients and you as a practitioner.

• NAELA hosted two successful workshops in 2010 designed to promote the Academy and Elder and Special Needs Law to minority attorneys. We hope to expand the number of workshops given next year by working with State Chapters interested in presenting the work-shop on their own.

• We want to increase the public’s recognition of when an Elder and Special Needs Law attorney is needed and the value of that attorney being a NAELA member. There-fore, we will be developing several tools that members can use to promote themselves to the public in conjunc-tion with the Academy’s outreach to the media through targeted communication efforts.

• Last year proved very good for NAELA with respect to its public policy activities, as the Elder Justice Act, the CLASS Act, and several other key initiatives supported by NAELA became law as part of the healthcare reform legislation. This coming year, with the change in the concentration of the House after the November elec-tions, we’ll be maintaining our bipartisan stance and working to build on existing and create new relation-ships on Capitol Hill so that we can have a say in those matters, such as Medicare, Medicaid, and Social Security, that are so important to our clients. And a great oppor-tunity for members to get involved is Capitol Hill Day, March 21-22, in Washington, D.C.We’ve had a great 2010, but now you can also see why

I’m really looking forward to 2011.All the best for a happy and healthy holiday season.

Now if only I could remember what Kathy told me she wanted for Christmas. n

NAELA staff members can help you with any questions you might have about your NAELA membership, events, publications, public policy,

etc. Here’s a brief summary of who to contact, but know that any staff member can assist you with your questions or get your call or e-mail to the right person for a prompt response.

Peter G. Wacht, CAE, Executive Directorext. 227, [email protected]

MEMBERSHIPKirsten Brown Simpson, Director of Member Relations and Marketingext. 224, [email protected] Munley, Membership Coordinatorext. 222, [email protected]• Membership renewals • Membership applications • Chapter and Section membership additions • Experience listings • Additional Location Listings • Personal web pages • NAELA

website password questions • Online and printed directory • Brochure and collateral program • New member welcome kits • Membership rosters • General membership inquiries • Address and contact information updates • Member Benefits and Services inquiries

MEETINGS AND EDUCATIONCasey Anderson, Director of Meetings and Educationext. 7, [email protected] Naoroji, Meetings and CLE Coordinatorext. 229, [email protected] • Education • Speakers • Event registration • Telephonics • Online Education Library • Vendor Partner Program inquiries • Exhibitors/Sponsors • CLE information

COMMUNICATIONS AND PUBLICATIONSNancy M. Sween, Director of Communications and Publicationsext. 225, [email protected] Baker, Communications Specialistext. 230, [email protected]• NAELA News content and advertising • website advertising • NAELA Journal content • NAELA Publications• Media contacts • Public relations

BOOKKEEPING AND GENERAL ADMINISTRATIVE QUESTIONSAnn Watkins, Program Coordinatorext. 226, [email protected]• Product orders • Subscription inquiries

SECTIONS, CHAPTERS, AND LISTSERVSMeredith Hansen, Section Coordinator ext. 6, [email protected]•Student Writing Competition • Law Student Day • Diversity Task Force • Academic Subcommittee • List Serv inquiries

Your NAELA Staff

NAELA • 1577 Spring Hill Road, Suite 220 • Vienna, VA 22182703-942-5711 • 703-563-9504 Fax • www.NAELA.org • [email protected]

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I first met Peter Strauss, Senior Counsel at Epstein, Becker & Green, in New York City, December 2009. He was being honored by Selfhelp Community Ser-vices, a nonprofit organization dedicated to main-

taining the independence and dignity of seniors — a goal very dear to Peter. As I listened to his acceptance speech, it became clear to me that Peter is an exceptional individual — a man of vision, who foresaw the need for this special-ized area of the law years before Elder Law as we know it today existed. His vision led to the shaping and develop-ment of this practice area.

Indeed, his acceptance speech that night showed that Peter has lost none of his zeal in continuing to influence the direction of Elder Law. Peter candidly pointed out to an audience of his colleagues where they fall short, such as addressing the Elder Law needs of the significantly under-served minority populations. This hit a poignant note for me, as I had my own experience with this issue when, as an information technology attorney at the time, I had to navigate the myriad issues in planning for my Puerto Rican mother’s incapacity.

When NAELA News invited me to contribute an article featuring Peter, I was honored to have the opportunity

to get to know this remarkable person, recognized as one of the first attorneys in the country in private practice to focus on the legal issues of the aging and persons with disabilities.

Building the Foundation of Elder LawPeter practiced trusts and estates law beginning in 1961.

In the mid-1970s, he took a leave of absence to join a fam-ily business and soon afterward he started his own practice. During this period, he served as president of the New York Chapter of the American Jewish Committee (AJC), a non-profit organization dedicated to protecting Jewish popula-tions in danger by helping to assure that they are accorded respect and dignity.

It was there that Peter met and worked with AJC vice president Sam Sadin. Mr. Sadin had spent many years dealing with the problems faced by his aging parents, and his experience led him to approach Peter with an idea for a seminar for AJC members, “You and Your Aging Parent.” They anticipated that the presentation would draw about a dozen people, but instead more than 75 members attended. Peter thus realized the strong need for specific information regarding the rights and care of the elderly.

In 1978, at the request of the Director of Social Ser-vices at Long Island Jewish Hospital, Peter brought and won a support suit on behalf of an elderly woman, Mrs.

Peter J. StraussVisionary, Architect, Guiding LightByTeresaMarrero,Esq.

FEATURED MEMBER

Meet Peter Strauss, one of NAELA’s founders and someone who has helped shape the practice of Elder Law.

Teresa Marrero, Esq., practices in New York and is a member of the NAELA News Editorial Committee.

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G., against her husband, a retired postal worker with little assets. Mr. G. had suffered a stroke, leaving his wife with a small Social Security benefit and a few hundred dollars from Medicaid out of his income. The case of Mr. and Mrs. G., which established the principle that spouses of institutionalized Medicaid recipients have the right to be supported even by persons receiving government benefits, was the foundation for the spousal protection rules incor-porated in the 1988 Medicare Catastrophic Coverage Act. Peter again realized that there was a void to be filled by the legal community.

Peter and Sam Sadin led AJC to institute an advocacy program addressing the legal problems of the elderly and hired Robert Wolf, Esq., as its director. The program even-tually was spun off, becoming the Institute on Law and Rights of Older Adults at Hunter College’s Brookdale Cen-ter on Aging. It became nationally recognized for its work in the field of aging and was renamed the Sadin Institute after Sam’s death.

In 1984, Peter formed Strauss & Wolf, one of the first law firms in the nation — and the first in New York — to specialize in Elder Law issues. Along with their associates, Robert Freedman and Gary Mazart, these men developed a prototype for today’s Elder Law practice.

That same year Peter designed and chaired the first CLE program in the country exclusively devoted to the prob-lems of people as they age at the Practicing Law Institute (PLI), a program PLI sponsored for 10 years.

Robert Wolf and Elder Law practitioners from around the country such as Michael Gilfix, Alan Bogutz, John Laster, and Stephen Feldman, were invited to speak at the ABA meeting in Chicago about the growing Elder Law movement. The conference resulted in the ABA publishing a pamphlet titled Doing Well by Doing Good. Peter views the establishment of the PLI and ABA programs as the “certificates of authentication” acknowledging Elder Law as a distinct area of private practice.

In 1987, Peter helped organize 42 Elder Law practitio-ners during a California Bar Association meeting in San Francisco. One year later, the meeting led to the formation of NAELA, of which he was a founding member.

Shaping the LawPeter strongly believes that “when there is a void, you

can step in and shape the discussion.” He has spent the last

several decades shaping public and legislative perceptions about the rights of the elderly and persons with disabilities. One of his basic precepts is that Elder Law attorneys cannot practice in isolation. To this end, he is one of the founders of the National Association of Professional Geriatric Care Managers (NAPGCM), serving as its pro bono counsel during its first 10 years. He has discovered ways for NAPGCM and NAELA to work together to more effectively and comprehensively advocate for the elderly.

Another one of Peter’s fundamental beliefs is that elderly persons should be permitted to maintain autonomy to the greatest extent possible and therefore, he says, one of an Elder Law attorney’s greatest challenges is addressing the struggle between autonomy and paternalism.

In “Appointing a Guardian in America: How Do We Get There?” (see following article, page 12), Peter cites the holding in the New Jersey Supreme Court case, in the Matter of M.R.1 — a holding that he considers his “Bible”: “Unless they endanger themselves or others, competent people ordinarily can choose what they want, even if their choices are irrational or dangerous. … The paradox with incompetent people is to preserve as much as possible their right of self-determination while discharging the judicial

1 Matter of M.R., 135 N.J. 155, 159 (Sup. Ct.) 1994).

The case of Mr. and Mrs. G., which established the principle that spouses of institutionalized Medicaid recipients have the right to be supported even by persons receiving government benefits, was the foundation for the spousal protection rules incorporated in the 1988 Medicare Catastrophic Coverage Act. Peter again realized that there was a void to be filled by the legal community.

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responsibility to protect their best interests.”2 Through his writings, presentations, advocacy in guardianship cases, and testimony on this theme, Peter has influenced how New York State’s modern guardianship law, enacted in 1993, is applied so as to implement the “least restrictive form of intervention.”

Peter also helped shape the debate about the rules of professional ethics. He was a NAELA delegate to the Conference on Ethical Issues in Representing Older Clients held at Fordham Law School in 1993. The six organizations attending adopted proposals to change the ABA Model Rules of Professional Responsibility, many of which were adopted by the ABA. Peter believes that NAELA’s delegation strongly influenced the conference, and subsequently the ABA, to modernize the ethical rules to address issues relating to client’s with diminished capacity, how to determine capacity, who is the Elder Law attorney’s client, confidentiality, and the limits of protec-tive actions an Elder Law attorney can take when the client is at risk.

Peter’s zealous advocacy can sometimes take an uncon-ventional approach. In the late 1990s he spoke at a New York State Bar Association program addressing the “Lawyer Goes to Jail Law” (the successor to the “Granny Goes to Jail Law”), which attempted to criminalize advising a client on asset transfers for Medicaid planning.3 Peter dramati-cally presented his opinion by walking up to the podium dressed in prison stripes and carrying a ball and chain.

Through his effective advocacy, treatises, articles, and other writings, Peter has significantly shaped the develop-ment of Elder Law — an area that, given the aging demo-graphics, has become increasingly relevant.

Focus on the People; Guiding the FuturePeter’s influence goes beyond the legal community;

his impact extends to laypersons. He was one of the first attorneys to represent Alzheimer’s patients, and indeed his vision that attorneys must not only focus on asset planning at death, but also address planning for incapacity, has been echoed in books and newspaper articles. In a New York Times article, “Another Name for Madness,” one of the first

2 Id.3 New York State Bar Ass’n v. Reno, 999 F. Supp. 710 (N.D. N.Y.

1998).

About Peter J. StraussPeter Strauss is one of the founding members of NAELA. He

is one of the first four lawyers to become a NAELA Fellow and has served as a member of its Board of Directors.

Peter is senior counsel of the law firm Epstein Becker & Green, P.C., New York, N.Y. He is currently distinguished adjunct professor of law at the New York Law School and co-director of its Elder Law Clinic. From 1993–2000, Peter was adjunct professor of law, Masters Program in Estate Planning, University of Miami Law School.

He has co-written two books (The Complete Retirement Sur-vival Guide: Everything You Need to Know to Safeguard Your Money, Your Health, and Your Independence and Aging and the Law), has published articles in professional publications such as the New York Law Journal, The Elder Law Journal, and Trusts and Estates. He is a member of the editorial board of Caring Today magazine. He has conducted numerous semi-nars on estate planning for seniors and people with disabili-ties for many organizations throughout the United States.

Since 2007, he has been named one of New York’s “Super Lawyers in New York” by Super Lawyer Magazine.

Peter is one of the founders of the National Association of Professional Geriatric Care Managers (NAPGCM).

Peter’s greatest life experience has been raising a family along with Joan, his wife of 49 years, and having a career of which he is proud.

Peter enjoys skiing in Aspen.

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times that the term “Alzheimer’s disease” is used, the author quotes Peter:

Estate planning has always focused on distribution of property at death, . . . [b]ut now I program in a dimension I never used to — the possibility of long-term health care. I raise the issue of the alive but incapable person — shifting the focus from what happens at death to what can happen in life.4

Peter often is acknowledged in books on aging, includ-ing Gail Sheehy’s bestseller, Passages in Caregiving: Turning Chaos Into Confidence, in which she recognizes Peter as an invaluable contributor and “translator of arcane and incon-sistent legal barriers.”5

Despite these worthy accolades, what Peter considers most rewarding is the important role he plays in shaping

4 Marion Roach, Another Name for Madness, N.Y. Times, (Jan. 16, 1983).

5 Gail Sheehy, Passages in Caregiving, Turning Chaos into Confidence, p. 384 (William Morrow 2010).

the law through teaching as adjunct professor at the Uni-versity of Miami Law School’s Graduate Program in Estate Planning and as adjunct professor and co-director of New York Law School’s Elder Law Clinic.

In recognition of his service to the law school, New York Law School awarded Peter the title of Distinguished Adjunct Professor of Law in 2005. Peter therefore continues to shed a guiding light for our future practitioners.

Greatest Life ExperienceAlthough Peter’s professional accomplishments are

numerous and significant, Peter is humble, grounded, and down-to-earth. His response to my final question dur-ing our interview proves this. He describes his greatest life experience as “sharing with Joan, my wife of 49 years, the pleasure of raising a family that has managed to navigate successfully through the difficulties of a modern society, and having a career that I feel has some value to my world.” Some value indeed. n

The Special Needs Leadership Award is designed to encourage and promote activism and involvement by people with special needs and activism for the betterment of the lives of people with special needs.

The award will be presented at the NAELA Annual meeting, May 19–21, 2011, and includes a monetary contribution in the recipient’s name to a charitable organization with whom the award recipient has worked closely.

For more information and to download a nomination form, log on to www.NAELA.org. You’ll find the nominations form under the Membership tab:

Membership > Awards, Honors, and Designations.

If you have questions, contact Nancy Sween, [email protected].

Nominations are now open for the Special Needs Leadership Award.Deadline for Nominations: February 1, 2011

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www.nysarctrustservices.org

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Many of the issues that Elder Law attorneys deal with are rooted in the struggle be-tween autonomy and paternalism. This is particularly true with a proceeding for the

appointment of a guardian for an incapacitated person. The guardianship proceeding, an exercise of the state’s parens patriae authority to “do good” conflicts with an individual’s autonomy and civil liberties. Individuals have the right to behave badly and be self-destructive, provided they have the capacity to understand the implications of their actions. As the New Jersey Supreme Court said in Matter of M.R., “Un-less they endanger themselves or others, competent people ordinarily can choose what they want, even if their choices are irrational or dangerous. Traditionally, however, courts have tempered the right of self-determination of incom-petent people with concerns for their best interests. The paradox with incompetent people is to preserve as much as possible their right of self-determination while discharging the judicial responsibility to protect their best interests.”1

Change in AttitudeHistorically, guardianship legislation and the courts

focused on “doing good” and the state’s parens patriae power was exercised with relatively little regard to the rights of the “alleged incapacitated person.” For the most part, the “On/Off” switch approach to a person’s capacity has been rejected. “Like other areas of the law where the

1 Matter of M.R., 135 N.J. 155,159 (Sup.Ct. 1994).

concept of capacity is used, the required incapacity for the appointment of a guardian is no longer considered an all or nothing proposition but instead it is recognized as having varying degrees.”2 As stated in a 1990 article in Law, Medi-cine & Health Care:

In recent years, there has been a slow but dramatic change in society’s attitudes towards persons with disabilities — an evolution away from traditional paternalistic approaches which foster dependency, toward policies focused on maxi-mizing the potential for autonomy and independence among individuals of limited capacity.3

In 1990, The National Conference of Commissioners on Uniform State Laws adopted a revised Uniform Guardian-ship and Protective Proceedings Act, replacing the 1982 Act. The commentaries to the new model act echoed this trend.

Significant developments in the areas of guardianship and conservatorship occurred in the late 1980s and early 1990s as states revised their guardianship and conservatorship statutes. The 1982 Act, with its emphasis on limited guardianship and conservatorship, was groundbreaking in its support of autonomy. This revised Act builds on this and the revisions occurring in the states, by providing that guardianship and conservatorship should be viewed as a last resort, that limited guardianships or conservatorships should be used whenever possible, and that the guardian or conservator should always

2 Comment to Uniform Guardianship and Protective Proceedings Act (herein “UGPPA”) section 102(5).

3 Penelope A. Hommel, Lu-in Wang, and James A. Bergman, Trends in Guardianship Reform: Implications for the Medical and Legal Professions, Law, Medicine & Health, Vol. 18:3 (Fall 1990).

Appointing a Guardian in America: How Do We Get There?ByPeterJ.Strauss,Esq.

Have the goals of modernized guardianship laws been fully achieved?

Peter J. Strauss, Esq., New York, N.Y., is this month’s NAELA News Featured Member.

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consult with the ward or protected person, to the extent fea-sible, when making decisions.

The UGPPA seems to call for the appointment of a guardian only when there has been a functional assessment. See UGPPA section 102(5). The comment to that section states:

…The definition of “incapacitated person” (see paragraph (5)) requires that the respondent have an inability to receive and evaluate information or to make or communicate deci-sions to the point that the person’s ability to care for his or her health, safety, or self is compromised. This definition empha-sizes the importance of functional assessment and recognizes that the more appropriate measure of a person’s incapacity is a measurement of the person’s abilities. Like other areas of the law where the concept of capacity is used, the required incapacity for the appointment of a guardian is no longer considered an all or nothing proposition but instead it is rec-ognized as having varying degrees. This definition is designed to work with the concepts of least restrictive alternative and

limited guardianship or conservatorship — only removing those rights that the incapacitated person cannot exercise, and not establishing a guardianship or conservatorship if a lesser restrictive alternative exists. See Sections 311 and 409 for examples. These concepts are carried throughout the Act.

The Least Restrictive AlternativeIn 1993, New York replaced its former “committeeship”

and “conservatorship” proceedings and adopted Article 81 of the Mental Hygiene Law establishing the “guard-ianship” proceeding, based on the principle of the “least restrictive alternative” and adopting a functional approach. “The legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable.”4

4 New York Mental Hygiene Law, section 81.01.

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What Does the New Health Care Reform Law Mean to Your Clients?

NAELA offers seven new brochures designed to help you explain what the new health care law means to your clients. Each brochure can be personalized with your contact information.• The CLASS Program• Implementation Timeline• Provisions for Long-Term Care

at Home• How Does Health Care Reform

Affect Medicare?• An Overview of Major Provisions• Health Care Reform and People

with Special Needs• Nursing Home Improvement and

Prevention of Elder Abuse

Order online at www.NAELA.org.

National Academy of Elder Law Attorneys1577 Spring Hill Road, Suite 220 • Vienna, VA 22182703-942-5711 • www.NAELA.org

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The new statute makes it clear that it is not the diag-nosis that counts, but the individual’s ability to function.5 The New York approach is consistent with the goals of the UGPPA.

The trend is clear: States have moved away from a sys-tem where a guardian is appointed based solely on a medi-cal diagnosis and the opinion of a clinician speaking as an expert witness resulting in a finding that the individual is incapacitated to a system that requires proof of functional inability. But the question remains — how do we get there? How is functional incapacity proved? What kind of evidence is permitted to determine incapacity?

Evidentiary ModelsTwo evidentiary models have emerged. Some states

have adopted a standard of proof known as the “functional model,” allowing for the appointment of a guardian by establishing the functional deficiencies of the alleged inca-pacitated person through non-medical testimony. In these states it is likely that the patient-physician privilege will be honored and the alleged incapacitated person’s medical re-cords will not be disclosed and used as proof of incapacity. See Matter of Rosa B-S, the leading New York case holding that the alleged incapacitated person’s treating physician may not testify on the issue of capacity. The court said:

In this proceeding, the trial court was required to follow the rules of evidence, including the assertion and waiver of the doctor-patient privilege (see CPLR 4504), since the appellant did not consent to the appointment of a guardian. Although a guardianship proceeding places the alleged incapacitated person’s medical and mental condition in controversy, he or she does not waive the doctor-patient privilege unless he or she has affirmatively placed his or her medical condition in issue. …6

Other states allow — and in some cases require — medical testimony in determining capacity, including the alleged incapacitated person’s treating physician, to be used in guardianship proceedings, an approach known as the “medical model.”7 In these states the need for the appoint-

5 Id., section 81.02(b).6 Matter of Rosa B-S, 1 A.D.3d 355, 767 N.Y.S.2d 33 (2d Dep’t

2003).7 The UGPPA seems to take a less restrictive approach. A comment

states: “The visitor must talk with the physician or other person

ment of a guardian is presumed from the diagnosis and the physician’s opinion that the alleged incapacitated person is, in fact, in need of a guardian.

A review of the various state statutes indicates that some states may use a hybrid model incorporating elements of both the functional model and the medical model. See the chart prepared by the ABA Commission on Legal Problems of the Elderly.8

Which Model Achieves the Best Results?If the promise of a guardianship system that accom-

plishes the dual goals of providing for the needs of an incapacitated person through appropriate intervention and protecting such person’s civil liberties and autonomy

who is known to have assessed, treated, or advised about the respondent’s relevant physical or mental condition. This informa-tion is crucial to the court in making a determination of whether to grant the petition, since a professional evaluation will no longer be required in every case. See Section 306. If the doctor refuses to talk to the visitor, the visitor may need to seek an order from the appointing court authorizing the release of the information. Comment to Section 305.” The UGPPA thus seems to allow the physician’s testimony.

8 http://www.abanet.org/aging/legislativeupdates/pdfs/chart_capac ity_initiation.pdf

If the promise of a guardianship system that accomplishes the dual goals of providing for the needs of an incapacitated person through appropriate intervention and protecting such person’s civil liberties and autonomy is to be achieved, it is important to study the evidentiary models in use today and incorporate the model that is most consistent with the least restrictive alternative requirement.

Watch for detailswww.NAELA.org

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Leading the Way in Special Needs and Elder Law SM

“Hot Topics and Winning Strategies”

Elder and Special Needs Law Annual National Conference

May 19–21, 2011Basics Workshop (for Nevada Attorneys)

May 18, 20114 Great Reasons to Attend the Elder and Special Needs

Law Annual National Conference:1. The Seminars • Ethics in Medicaid • Veterans Benefits • Practice Development: Tips to Increase Revenue • Case Law Update • Sexuality and Aging

2. The Annual Business Meeting

3. The Exhibit Hall

4. Networking with Fellow Elder and Special Needs Law Attorneys

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is to be achieved, it is important to study the evidentiary models in use today and incorporate the model that is most consistent with the least restrictive alternative requirement. Does a purely functional model result in better results? Is a medical model consistent with the best interests of the al-leged incapacitated person? Is there some place for medical testimony even in the context of a functional model? If so, for what purposes? Is the goal of the least restrictive alterna-tive being met? Are there more limited guardianships today compared to pre-reform times?

These questions were discussed at a seminar held at the November 2009 NAELA Public Benefits and Guardian-ship Institute in Jersey City, N.J. The panelists were myself, Carolyn Byrne, Edward E. Zetlin, and Catherine Seal. In advance of the November seminar, I prepared, with the as-sistance of Kim Trigoboff, my student and research assis-tant at the New York Law School and several other faculty members, an extensive survey which was sent to approxi-

mately 575 NAELA members. The survey was designed to elicit facts about the respondents’ experience with respect to these issues and provide a textual foundation for the panel discussion. Seventy-five NAELA members respond-ed, a response rate of 13 percent.

Survey ResponsesFollowing are a few responses to the survey. A copy of

the survey results may be obtained by sending an e-mail to [email protected]

Which Evidentiary Standards Are Used in Your Jurisdiction?12% Wholly or mostly functional44% Both functional and medical44% Wholly or mostly medical

Is the Evidence Model Used in Your Jurisdiction Fairly Balanced?

Of the attorneys who represent petitioners in guardian-ship proceedings, 97 percent felt that the evidence model in their jurisdiction fairly balanced the rights and needs of the alleged incapacitated person, despite reliance on non-waivered medical evidence. It appears that the “best interest” view dominates the perception of fairness in the guardianship process. This was true even for attorneys who characterize the evidentiary standard as a blend of medical/functional or mostly medical.

According to the panelists at the 2009 seminar, the use of testimony by a treating physician is a widely accepted practice, even without a waiver of the physician/patient privilege by the alleged incapacitated person.

The author believes that this is another carry over from the general reliance on medical evidence, even in jurisdic-tions with a purportedly functional evidentiary focus, be-cause of a belief by judges that such testimony is necessary and assists in fashioning a “best interests” remedy.

The results of the survey support the author’s view that while guardianship statutes passed in the last 25 years have modernized guardianship laws, the goals of the statutes have not been fully achieved because of failure of appropri-ate implementation. n

9 Mr. Strauss would like to thank Kim Trigoboff, Esq., for her outstanding assistance in the development and execution of this survey.

Medicare Set-Aside Arrangements

At its November meeting during the Fall Institute in San Diego, NAELA’s Board of Directors approved a report written by the Medicare Task Force regarding the use of set-aside arrangements. The Task Force was created in spring 2008 for the purpose of reviewing the use of set-aside arrangements in settling personal injury cases where third-party liability for the payment of Medicare-covered medical expenses has been established.

The Task Force member’s included Alfred Chiplin (Chair), Bradley Frigon, Lawrence Friedman, Sally Hart, Charles Saba-tino, and Shirley Whitenack, and public policy advisor Brian Lindberg.

Among the Task Force’s recommendations:• Document files to reflect advice and counseling about the

appropriateness of Medicare Set-Aside arrangements in the context of a given case.

• Warn clients that the Medicare Secondary Payer Act (MSP) applies to all tort settlements and that the CMS considers personal injury plaintiffs to have an obligation to protect Medicare’s interests in coordinating future benefits.

• Advise personal injury clients to consider formal MSA Set-Asides with applications for approval from CMS.

To view the complete report which includes the Task Force’s findings and other recommendations, go to www.NAELA.org > Advocacy > Public Policy Positions.

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NAELA’s annual student writing competition is designed to focus law students on the issues of Elder and Special Needs Law and think of a career with Elder and Special Needs Law as

a specialty. There were 22 papers submitted for the 2010 competition. The top eight articles will be published in NAELA Student Journal, and cash awards are given to the authors of the top three papers.

Congratulations to the Following WinnersFirst Place: Clarissa Bryan, Georgia State University Col-

lege of Law. “The Use of Pre-Dispute Arbitration Agree-ments in Nursing Home Admission Contracts”

Second Place: Kristin Roshelli, St. John’s School of Law. “Are We Setting the Standard High Enough? Reassessing the ‘Charitable’ Benefit Requirement Nursing Homes Must Fulfill to Maintain their Nonprofit Status”

Third Place: Laura Keys, University of Idaho College of Law. “Geriatric Corrections: Aging Behind Bars”

Fourth Place: Emily E. Town, University of Pitts-burgh School of Law. “Medicare Advantage … or Disadvantage?”

Fifth Place: Elisa Mari, University of Pittsburgh School of Law. “New Methods of Promoting Quality of Care in Nursing Homes”

Sixth Place: Brittany O’Diam, University of Akron School of Law. “Bracing for the Boom: Ohio’s Need for a Reformed Medicaid Estate Recovery Program”

Seventh Place: Emily Fisher, University of Alabama School of Law. “The Current Standing of Medicaid Annuities”

Eighth Place: Peggy L. Bodin, Valparaiso University Law School. “Extreme Makeover: Medicare Needs More Than a Facelift”

Special Thanks to the Judges and EditorsFirst Round JudgesMartha C. Brown, CELA, CAP, St. Louis, Mo.Randall K. Craig, CELA, CAP, Evansville, Ind.Neil T. Rimsky, CELA, CAP, White Plains, N.Y.Mary E. WanderPolo, CELA, CAP, Montclair, N.J.William C. Wombacher, CELA, CAP, Peoria, Ill.

Second Round JudgesJean Galloway Ball, CELA, CAP, Fairfax, Va.Donna R. Bashaw, CELA, CAP, Laguna Hills, Calif.Patricia E. Kefalas Dudek, CAP, Farmington Hills, Mich.Kelly Guyton Frere, CELA, CAP, Knoxville, Tenn.Stuart D. Zimring, Esq., CAP, N. Hollywood, Calif.

NAELAStudentJournal EditorsE. Spencer Bates, Esq.,

Northampton, Mass.Tamara E. Bershok, Esq.,

Denver, Colo.Allison Hughes, Esq.,

Provo, UtahBarry Kozak, Esq., Chicago, Ill.Derryl Molina, Esq., San Jose,

Calif.Leigh Ann Orton, Esq., North East,

Pa.Lincoln Strawhun, Esq., San Antonio,

TexasKim F. Trigoboff, Esq., Forest Hills,

N.Y.

Congratulations to the Winners of NAELA’s 2010 Student Writing Competition

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Early in 2002, I came to the conclusion that my office and home were absolutely bursting at the seams in paper and I needed to do something. My practice then was a blend of Estate Planning

(EP) and Estate Administration (EA). Many of my EA files were thick and getting thicker. I was having trouble finding anything in the file despite a good indexing system in the folder. And worse, my wife was getting upset because as cases closed, they’d be boxed and go to the archives (i.e., the laundry room at home) and we were running out of room.

I decided to take the leap to paperless. Here’s how I ap-proached it and what I did:

I had two parameters. First, I couldn’t spend a lot of money. Second, I didn’t want to change the basic structure of the office and how we handled cases and clients. I did a great deal of research, reading magazines and books and scouring the Internet for advice.

The Case AuditThe audit was one of the smarter things I did and the

results proved useful again and again as we progressed through this project. I started off by picking one typical EA case and audited each piece of paper in the folder. I tried to group the paper into categories (deeds, tax returns, apprais-als, research, etc.). I then determined which documents we could keep as only a digital file and which ones needed

to be kept as a hard copy. I tried to specify why and force myself to make policy decisions.

Issues and PrioritiesNext, I put together a list of issues involved in this

switch. For example, would we keep nothing in paper mode or only some things? Would we go back and digitize all of our old files, only files that were currently open, or only for files that were currently open from the cut over date forward (currently open files would be a mix of digital and paper)? We chose the latter option as the most cost- effective for us. What equipment would we need to accom-plish the transition? I involved my staff and we prioritized what had to be done, what equipment we already had that we could use, and what we had to buy.

Phase 1: Outgoing DocumentsThe paper broke down neatly into outgoing (docu-

ments we created) and incoming (documents we received from someone else). So we broke the project into these two phases. I wanted to have a success quickly so we decided to deal with outgoing documents first. It seemed like the easi-est side to attack — we already had a digital copy to begin with and we were in total control of these documents from creation through filing.

Our rule was (with a few exceptions) that we would only keep a copy if our client had signed it. A few years later, after obtaining a high-speed scanner, we started keeping scanned copies of the signed versions.

Phase 1 went pretty easily once we forced ourselves to break the habit of photocopying everything, and over time

PROFESSIONAL DEVELOPMENT/PROFESSIONAL MANAGEMENT

Converting to PaperlessA Trusts and Estates Attorney’s PerspectiveByMerwynMiller,Esq.

Tips on taking the leap to a paperless office from an attorney who has successfully made the change.

Merwyn J. Miller is an estate planning/Elder Law attorney with an active law office in Encinitas, San Diego County, Calif.

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we have only slightly adjusted what we keep or don’t keep in hard copy.

Indexing SystemMy case management software, Time Matters (TM),

had a built-in document management system (DMS) that would help us with our indexing issue. All files that I saved to my hard drive through the DMS would be indexed under the matter. The software allowed me to search the index by name or date and could even break the files down by type of file (word processing, spreadsheet, pdf, etc.) But I wanted to have it broken down by the same indexing sys-tem I had been using with my paper files (correspondence, client data, wills/trusts, asset information, etc). With as-sistance from a TM consultant, we customized the standard indexing system.

Phase 2: Incoming DocumentsIt was clear from my case audit that many incom-

ing documents could be received in digital form, we just needed to ask for the documents to be sent that way. Even though my client base is predominantly older, many of them have fax capability and most have e-mail; a few even have scan capability. Most professionals also have these ca-pabilities. So we decided to simply encourage anyone with whom we were dealing to send us everything digitally.

The rule for faxes was that as the computer received them (we have no fax machine) we would “print” to pdf format and save it in our DMS. My assistant would then notify me by TM Messaging (an Instant Messaging system) that I needed to look at that particular fax. That method has worked out quite well.

That still left a significant portion of incoming docu-ments that were in hard-copy form. For that we needed a scanner. We now use a networked copier, printer, and scan-ner. Now the brokerage statements that the client drops off or the appraisals that come in hard copy form can all be quickly scanned and then shredded. (OK, we did tend to keep the original appraisal to attach to the IRS Estate Tax Return.)

The BenefitsWhen an EA case is ready to be archived, the paper is

nominal. Originally, the digital files were moved to a CD and we set a date for its destruction five years out. Today,

hard drives are inexpensive and large enough for us to just move the matter folder from the digital “active” to “inac-tive” in Windows Explorer. When EP cases are completed, the paper is also nominal. We keep the EP documents on the hard drive until the client dies so that they can be retrieved when necessary.

Problems ExperiencedThere have been very few real problems that we have

encountered over the years. It is so easy to send a copy of a document to a client or other professional by simply attaching it to an e-mail. For those very few profession-als who still have dial-up Internet connections or e-mail accounts that have very limited size capacities for receiving attachments, receiving electronic files can be challenging. When someone notifies us of a problem, we gladly fax it. And there are those clients (small in number) who no mat-ter what you do, they have trouble receiving files any way except through the mail. So we just mail them a hard copy.

ConclusionAll in all this has been one of the better things I have

done from a practice management standpoint. It has elimi-nated some of the more tedious duties that go along with the practice of law. n

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NAELA’s Senior Rights PAC: 2010 Midterm Election ReportByKerryPeck,Esq.andBrianW.Lindberg

The Senior Rights PAC (SR PAC), NAELA’s political action committee, was established in 2004 with the goals of assisting congressional candidates who support NAELA’s goals and

objectives; increasing NAELA’s access to Members of Congress; educating Congress about the needs of the elderly and individuals with disabilities; and promoting the understanding of the work of Elder and Special Needs Law attorneys. The PAC receives contributions from NAELA members and is governed by a separate Board of Directors composed of NAELA members.

The SR PAC supported both Republican and Demo-cratic candidates during the 2010 election cycle, believing that its success depends in large part on its ability to work with members from both sides of the aisle. It was a con-tentious campaign year, with the introduction of the Tea Party, a new non-establishment political movement. Some of NAELA’s SR PAC-supported candidates faced daunting challenges, but survived, such as Majority Leader Harry Reid, Sen. Barbara Boxer, and Sen. Patty Murray. While

Member

2010 Election Cycle PAC Contribution

Won or Lost

Sen. Charles Grassley (R-IA) $ 2,000 W

Sen. Patty Murray (D-WA) $ 3,000 W

Sen. Ron Wyden (D-OR) $ 3,000 W

Sen. Harry Reid (D-NV) $ 3,000 W

Sen. Charles Schumer (D-NY) $ 1,000 W

Sen. Barbara Boxer (D-CA) $ 1,000 W

Sen. Blanche Lincoln (D-AR) $ 4,000 L

Rep. Dennis Rehberg (R-At-Large, MT)

$ 1,000 W

Rep. Zack Space (D-18th, OH)

$ 3,000 L

Rep. John Dingell (D-15th, MI) $ 2,000 W

Minority Leader John Boehner (R-8th, OH)

$ 2,000 W

Rep. Norman Dicks (D-6th, WA)

$ 1,000 W

Rep. Jerry Lewis (R-41st, CA) $ 1,000 W

Rep. Rosa DeLauro (D-3rd, CT)

$ 2,000 W

Minority Whip Eric Cantor (R-7th, VA)

$ 2,000 W

Rep. Carolyn McCarthy (D-4th, NY)

$ 1,000 W

Rep. Nita Lowey (D-18th, NY) $ 1,000 W

Rep. Frank Pallone (D-6th, NJ) $10,000 W

Rep. Anna Eshoo (D-14th, CA) $ 1,000 W

Rep. Henry Waxman (D-30th, CA)

$ 1,000 W

Rep. Jan Schakowsky (D-9th, IL)

$ 2,000 W

Rep. Charles Rangel (D-15th, NY)

$ 1,000 W

Marc Feinstein (D-14th) South Dakota House

$ 500 W

Rep. Joe Sestak (D-PA) U.S. Senate Candidate

$ 5,000 L

Jack Conway (D-KY) U.S. Senate candidate

$ 2,000 L

Total PAC Contributions $55,500 21 W

4 L

Kerry Peck is Chair of the Senior Rights PAC Board. Brian Lindberg is the Public Policy Advisor for NAELA and the Senior Rights PAC Director.

Help educate the new members of Congress about NAELA’s work and help solidify our relationships with our current congressional friends with your contribution to the NAELA SR PAC.

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the numbers show that the PAC was victorious overall, we did suffer two significant defeats with the loss of two strong aging advocates: Sen. Blanche Lincoln and Rep. Joe Sestak. Sen. Lincoln has been an advocate for the Elder Justice Act, Older Americans Act funding, and care coordination for individuals with multiple chronic illnesses. Rep. Sestak has been a strong champion for elder justice and civic engage-ment, having introduced his own legislation on these topics.

2010 Midterm Election By the Numbers• SR PAC-supported candidates won in 21 of 25 races, or

84%.• Total funds given to candidates running in 2010:

$55,500.• Total funds given to winning candidates: $41,500.

• Total funds given to losing candidates: $14,000.• Percentage of funds used toward winning candidates:

75%.

Other SR PAC Contributions• $16,000 to the Hawkeye PAC, Senator Grassley’s leader-

ship PAC (2005–2009). • $10,000 to the Harry Reid Searchlight Leadership Fund

(2004–2007). • $4,000 to LincPAC (Sen. Lincoln’s leadership PAC)

(2005–2007).Help educate the new members of Congress about

NAELA’s work and help solidify our relationships with our current congressional friends with your contribution to the NAELA SR PAC. Use the contribution form on page 4 of this issue. Thank you! n


Your NAELA Membership Will Expire December 31, 2010. Renew Now!

Important Note: In order to be listed in the 2011 printed membership directory you will need to renew your membership no later than January 18, 2011.

It’s membership renewal season for 2011. NAELA began sending 2011 membership renewal notices in October. When you receive your renewal notice, please take a few moments to review your online profile to be sure NAELA has all your correct information that you wish to see printed in the 2011 Membership Directory. You can update your address information as well as renew your membership online by logging onto www.NAELA.org. If you cannot locate your username and password, let us know by e-mailing [email protected].

For further questions about membership or your renewal, please contact Laura Munley, [email protected] or 703-942-5711 Ext. 222.

Don’t let your membership expire — you rely on NAELA for so many things:• Online directory listing for referrals• Legislative advocacy and public policy updates• Specialized information through NAELA programs, Chapters, Sections, and listservs• Interaction with other NAELA members• Important publications like NAELA Journal and NAELA News• Printed directory for NAELA member contacts and referrals

NAELA, 1577 Spring Hill Road, Suite 220, Vienna, VA 22182 • www.NAELA.org • 703-942-5711

National Academy of Elder Law Attorneys • Volume 22 • Issue 5 • 2010

Also Inside:

• NAELA Hill Day • Health Care Reform Law and Medicaid

• Adding Veterans Benefi ts to Your • Long-Term Care

• Practice

Lee Holmes, CELAA Man of His Convictions


2010

NAELAMembershipDirectory

22

The Government Accountability Office (GAO)estimates that 15 percent of participants have taken some form of early withdrawal. Over the past year and perhaps in recognition of this,

the IRS has devoted considerable attention to updating its guidance regarding early withdrawals from qualified accounts. This article deals with the various methods of taking early (i.e., pre-59½) withdrawals from 401(k)s and IRAs without incurring the 10 percent penalty.

There are often different rules for 401(k) and other ERISA plans as opposed to various forms of IRAs. How-ever, the rules are the same for penalty-free withdrawals from a 401(k) or IRA if the account owner: • Becomes totally disabled; • Has medical expenses that exceed 7.5 percent of adjusted

gross income;• Is required by court order to give money to a divorced

spouse (i.e., a QDRO);• Is separated from service (through permanent layoff,

termination, quitting or taking early retirement) in the year the account owner turned 55 or later; or

• Takes withdrawals in substantially equal amounts over the owner’s life expectancy that:

1. Must be paid at least once each year; 2. Must be based on the life expectancy of the plan par-

ticipant or the joint life expectancy of the participant and a designated beneficiary; and

3. Must not be modified before the later of five years after the first distribution or the date on which the plan participant reaches age 59½.

Additional Withdrawal Opportunities for IRAsIn addition to the above options, there are three ad-

ditional means of withdrawing funds pre-59½ years of age from an IRA (but not a 401(k)):1. To pay health insurance premiums during a period of

unemployment lasting at least 12 consecutive weeks;2. To pay for higher-education expenses for the account

owner or the account owner’s spouse, child, or grand-child, but only if the distribution is used to pay for tuition, fees, books, supplies, equipment, or room and board and is net of any scholarships; or

3. To pay up to $10,000 of the cost of purchasing (not refinancing) a first home, defined as someone who did not own (and whose spouse did not own) a principal

Thomas J. Murphy, Murphy Law Firm, Inc., practices Elder Law in Phoenix, Ariz.

Penalty-Free Withdrawals from Qualified Plans for Those Pre-Age 59½ByThomasJ.Murphy,Esq.

In the current distressed economic environment, a retirement plan is often the largest asset our clients may have. With financing difficult to obtain, accessing those funds may be critical, especially without incurring any early-withdrawal penalties.

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residence in the two years pre-ceding the distribution from the account.

Additional Withdrawal Opportunities for 401(k)sHardship Withdrawals

A 401(k) plan may allow employ-ees to receive a hardship distribution because of an “immediate and heavy finan-cial need” and the distribution is “necessary to satisfy that financial need.” Hardship distribu-tions from a 401(k) plan are limited to the amount of the employee’s contributions and generally do not include any income earned on the deferred amounts. If the plan permits, certain employer matching contribu-tions and employer discretionary contributions may also be included in hardship distributions. Hardship distributions cannot be rolled over to another plan or IRA.

A distribution is deemed to be on account of an “im-mediate and heavy financial need” of the employee if the distribution is for:• Expenses for medical care previously incurred by the

employee, the employee’s spouse, or any dependents of the employee or necessary for these persons to obtain medical care (note that there is no 7.5 percent of AGI requirement);

• Costs directly related to the purchase (not the refinanc-ing) of a principal residence for the employee, not to exceed $10,000 but only if no home has been owned in the previous two years;

• Payment of tuition, related educational fees, and room and board expenses, for the next 12 months of post-secondary education for the employee, or the employee’s spouse, children, or dependents;

• Payments necessary to prevent the eviction of the employee from the employee’s principal residence or foreclosure on the mortgage on that residence;

• Funeral expenses; or• Certain expenses relating to the repair of damage to the

employee’s principal residence.The second prong of the hardship withdrawal test is that

the distribution must be “necessary to satisfy a financial need.” This determination is to be made on the basis of all relevant facts and circumstances. The employee’s re-

sources are deemed to include those assets of the employee’s spouse

and minor children that are reasonably avail-able to the employee. Thus, for example, a vacation home owned by the employee and the employee’s spouse, wheth-er as community property, joint tenants, tenants by the entirety, or tenants in common, generally will be deemed a resource of the employee. The amount of an immediate and heavy financial need may include any amounts neces-sary to pay any federal, state, or local income taxes or pen-alties reasonably anticipated to result from the distribution.

In making this determination, the plan administrator may simply rely upon the employee’s written representa-tion, unless the employer has actual knowledge to the contrary, that the need cannot reasonably be relieved:• Through reimbursement or compensation by insurance

or otherwise;• By liquidation of the employee’s assets;• By cessation of elective contributions or employee con-

tributions under the plan; or• By other distributions or nontaxable (at the time of the

loan) loans from plans maintained by the employer or by any other employer, or by borrowing from commercial sources on reasonable commercial terms in an amount sufficient to satisfy the need.If a hardship withdrawal is made, both the participant

and the employer are prohibited from making any contri-butions to the account for a six-month period.

There are no hardship withdrawals from IRAs. However, IRA funds can always be accessed for any reason and at any time but the 10 percent early withdrawal penalty will apply.

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Loans from 401(k)sRather than taking a taxable distribution from a plan, a

401(k) plan participant can often take a loan in accordance with Internal Revenue Code section 72(p)(2)(A). Note that loans cannot be made from IRAs. The statutory conditions that must be satisfied are:1. Loan cannot exceed the lesser of $50,000 or half the

participant’s nonforfeitable account balance. (The $50,000 limit is reduced if there were outstanding loans during the one-year prior to issuing the new loan.)

2. Loan must be repayable within five years or, if used to acquire a principal residence, 15 years.

3. Repayment must be required in substantially level pay-ments, not less frequently than quarterly.

4. Loan is evidenced by a written, enforceable agreement.

Advantages of a loan from a qualified plan: 1. Quick and convenient. There is no credit check or

long credit application form. Some plans only require a phone call, while others require a short loan form often available on the Internet.

2. There is a low interest rate. You pay the rate set by the plan, usually one or two percentage points above the prime rate.

3. There usually are no restrictions or conditions. Most plans allow borrowing for any reason — no financial hardship need be shown.

4. The participant is both lender and borrower. Interest is paid to the participant’s account, not to the bank or credit card company.

5. The interest is tax-sheltered. The plan does not pay taxes on the interest until retirement, when the money is taken out of the plan.

6. The participant can choose where the money comes from. The advantage of being able to choose which in-vestment you will liquidate in order to obtain the funds for your loan is that you can leave untouched those investments with the best performance.

7. The existence of these loans or loan defaults are not reported to credit rating agencies.

Disadvantages of a loan from a qualified plan:1. The biggest disadvantage is the potential of a job loss. If

a participant loses a job or changes employers, the loan must be immediately paid back. Most plans require full repayment of a loan within 60 days of termination of employment. If repayment cannot be made, the loan is considered defaulted with income taxes and penalties imposed on the outstanding balance

2. The interest rate paid on a plan loan may be less than the rate the plan funds would have otherwise earned.

3. Smaller contributions. Because of the loan payment, a participant will be tempted to reduce the amount contributed to the plan and thus reduce the long-term retirement account balance.

4. There may be fees involved although this is usually a low-cost loan.

5. Interest on the loan is not tax deductible, even if you borrow to purchase your primary home.

6. The term of the loan cannot be longer than five years (or 15 if for principal residence).

7. Difficult to obtain if your 401(k) is with a former em-ployer — plans usually prohibit them.The IRS and other government agencies have recently

devoted substantial efforts in updating their websites or undertaking studies that a practitioner may find useful. For instance, pages entitled “Retirement Plans FAQs Regarding Hardship Distributions,” “Retirement Plans FAQs Regard-ing IRAs,” and “Retirement Plans FAQs Regarding Loans” on the IRS website sets forth the basic rules governing such withdrawals. See also “Retirement Topics — Hard-ship Withdrawals,” Tax Topic 424, 557, and 558 on the IRS website as well as the Fall 2008 edition of Employee Plan News. Other useful items are a Federal Reserve study that suggested more borrowing from qualified plans should occur (Report 2009-19) and the GAO issued a report strongly suggesting changes to the hardship rules in GAO Report 09-715. n

The IRS and other government agencies have recently devoted substantial efforts in updating their websites or undertaking studies that a practitioner may find useful.

Some of the most popular titles include:• VA Accredited Program• Top Ten Tax Topics• The New Health Care Reform Law:

Understanding Its Impact on Older Adults and People with Special Needs

• Overview of Medicaid• Overview of Medicare• Elder Law Ethics

• Choose from over 100 CLE programs• Searchable by topic• Downloadable to MP3 files — takeyourCLEstogo!• Log in and start earning your CLE credits today.*

It’s that easy!

NAELA’s Online Education Library has the answer!

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* Subject to State Bar approval. Contact [email protected] for more information.

Go to www.NAELA.org and get started today.www.NAELA.org > Library > Archived Seminars

No Time for CLEs? Take Them to Go!

2010 Fall Advanced Institute and Introduction to Elder and Special Needs Law Seminars

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26

It is surprising that Elder Law practitioners have devoted little attention to the analysis of language to, by, with, and about the elderly. It is also surprising that there is very little case law. In a quick search on

Westlaw, I was unable to find cases where language issues involving elderly persons were emphasized. Any possible role of language factors remained in the background. This article is not a scholarly overview of research. Instead, the primary purpose is what was once called consciousness-raising. In the past few decades there have been many research findings that are relevant to Elder Law issues, but most are unknown to the Elder Law community.

In this article, I will concentrate on talking to the elderly. Many of the issues that dominate Elder Law practice and Elder Law teaching materials are intimately connected with language. Understanding the connections can facilitate better representation. Consider just a few examples.

Capacity is generally based on ability to use language — in expression and in comprehension. Ethical concerns often revolve around communication with and about clients. Discrimination is generally based on stereotypes and discourse plays a strong role in creating and perpetuat-ing stereotypes. Researchers have noted that status as an aged person is not a purely biological construct. Talk does much of the work in determining who is perceived to be old and what the common characteristics of older status

might be, whether positive (wisdom) or negative (frail, senile). This includes talk by family; caretakers; authority figures such as doctors, nurses, and lawyers; and the media. Autonomy and empowerment for older adults are more likely to be attained through assertive use of language than through physical activity. The success of planning, whether estate planning or life planning, depends on successful communication.

One term Elder Law attorneys are likely to be familiar with is elderspeak. The term is based on an analogy with babytalk. Babytalk is not the way babies talk, but rather is the way we talk to babies. Elderspeak is a way of speak-ing to elders. Like babytalk, it tends to be spoken with an exaggerated pitch pattern and uses special, “cutesy”words. Elderspeak is most commonly associated with care settings, especially as used by caretakers in nursing homes.

What is important about such talk is not just that it is unpopular, but rather that it is deleterious. According to the Communication Predicament of Aging Model (Ryan, Hummert & Boich, Journal of Language and Social Psychol-ogy, March 1995, vol. 14, no. 1-2, 144-166), elderspeak is part of a vicious cycle where age stereotypes trigger patron-izing speech which leads to loss of self-esteem and feeling of incompetence or dependency in elder listeners. After a while, these impressions become internalized, leading to a true loss of independence and capacity.

Stereotypes created and disseminated in talk to the elderly involve much more than overt elderspeak. Lack of cognitive complexity in speech directed toward older

Language and the Elderly: Elderspeak and BeyondByJoshArd,Esq.

If we seek to empower clients and protect their rights, we need to engage in communicative activities that engage clients and empower them.

Josh Ard, JD, PhD, MBA, Williamston, Mich., is a member of the NAELA News Editorial Committee.

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persons leads to less engagement in conversations by the elderly and enhances general cognitive decline. Other problematic features include patronizing, condescending, and ignoring forms of communication. Examples include “Now, dearie, why don’t we let the doctor worry about that?”

There is very little research literature addressing dis-course between older clients and attorneys, but a very rich literature dealing with medical encounters.

There is much less talk addressed to older patients by doctors and nurses than to younger patients. Many find communication with older persons to be very uncomfort-able. Doctors are much less likely to spend time with older patients and are less likely to encourage them to participate actively in care planning. The epitome is found in nursing homes, about which some researchers have described “the communicative climate of long-term nursing homes in the United States as ‘interactive starvation.’”

Even though there is less talk in general with older pa-tients, what talk there is tends to be dominated by doctors. Doctors are much more likely to set topics and dominate the conversation than is the case with younger patients. In-teractions with older patients are more likely to be focused narrowly on medical tasks rather than more general topics, which can enhance rapport.

These communicative patterns are reflected in studies of how satisfied patients are with their doctors. The more doctors dominate the conversation, the more they stick to comments about ailments and treatment, and the shorter the interchanges, the less satisfied patients are.

The poorer the communication, the less likely patients are to adhere to medication regimes. For example, the more patients were encouraged to ask questions and voluntarily did so, the greater the compliance.

These studies have implications for legal practice. By now, Elder and Special Needs Law attorneys are aware that they need to communicate with clients and cannot interact only with others who claim to be concerned as a relative or acquaintance. Where awareness is lacking is in the quality and nature of that communication. If we seek to empower clients and protect their rights, we need to engage in communicative activities that engage clients and empower them. Careful, respectful listening and en-couraging clients to ask questions and direct the conversa-tion are helpful in this regard. n

NAELA Student Chapters

In an effort to expand NAELA’s reach and encourage more future attorneys to practice Elder and Special Needs Law, NAELA recognized the formation of the first-ever Student Chapters. New York Law School and Albany Law School of-ficially formed NAELA Student Chapters in October 2010.

“I am thrilled that these Student Chapters were formed. It is essential that the law students see the value in being actively involved with NAELA at an early stage in their legal careers. Their involvement will not only serve to strengthen the membership, reach and voice of the State Chapter, but will continue to reinforce NAELA’s membership and grass-roots efforts through the State Chapters,” said Mike Amoruso, Co-Chair of the NAELA Chapter Presidents Council.

In order to establish a Student Chapter, a law school must be accredited and offer at least two classes in Elder Law. A student wishing to join must be a student member of NAELA and must be currently enrolled in at least one course. Ad-ditionally, there are a minimum of five students required to form a Student Chapter. The students must then submit a let-ter of interest to the State Chapter president and receive au-thorization from their university. Finally, the Student Chapter must receive final approval from NAELA’s Executive Director.

Mr. Amoruso said he hopes the number of Student Chap-ters grows over time. He added, “I encourage all of our State Chapters to reach out to their local law schools and promote student membership in the Chapter.”

For more information on the Albany Law School NAELA Chapter, contact Student Chapter President Lauren Palmer, [email protected].

For more information on the New York Law School NAELA Chapter, contact Student Chapter President Elizabeth Briand, [email protected].

28

NAELA EventsJanuary 21–23, 2011. NAELA UnProgram,

Grapevine, Texas. Reservations: 972-724-2600 x 3030 (reference NAELA), http://embassysuites1.hilton.com.

March 21–22, 2011. NAELA Hill Day, Washington, D.C. Training sessions held March 21. Visits held March 22. Register online now. This is a free event.

May 18, 2011. NAELA Board of Directors Meeting held in conjunction with the Elder and Special Needs Law Annual Meeting, Las Vegas,

May 18–21, 2011. NAELA Elder and Special Needs Law Annual National Conference and Basics Workshop for Nevada Attorneys (May 18), Encore at Wynn Las Vegas, Las Vegas, Nev. Reservations: 877-321-9966, www.encorelasvegas.com.

August 19–20, 2011. NAELA CAP Conference (CAPs only). Hotel Allegro Chicago, Chicago, Ill. Reservations: 800-KIMPTON, www.allegrochicago.com.

November 8–9, 2011. NAELA Advanced Elder Law Review/CELA Prep, Boston Seaport Hotel, Boston, Mass. Reservations: 800-SEAPORT, www.seaportboston.com.

November 9, 2011. NAELA Board of Directors Meeting held in conjunction with the Advanced Fall Institute, Boston, Mass.

November 10–12, 2011. NAELA Advanced Fall Institute, Boston Seaport Hotel, Boston, Mass. Reservations: 800-SEAPORT, www.seaportboston.com.

NAELA Board of Directors Meetings are open to all NAELA members. Meeting announcements and minutes from past Board of Directors meetings are posted on www.NAELA.org.

Other EventsJanuary 20–21, 2011. NELF “WOW” Program,

Embassy Suites, Grapevine, Texas. Contact [email protected] for more information, or go to www.nelf.org.

Chapter and Section EventsNAELA Chapters and Sections: Let us know about your upcoming events. Send information to Nancy Sween at [email protected].

2011 NAELA Telephonic/Webinar ProgrammingYou and your staff can get the training you need to be on top of current Elder and Special Needs Law topics — without leaving your office. To register and for more information, go to www.NAELA.org. Register for three seminars and get a 10 percent discount. Register for six or more seminars and get a 20 percent discount. January 11, 2011. 2 p.m. EST. Attracting Clients and

Working Smart, Timothy Crawford, CELA; James Schuster, CELA; and Leonard Mondschein, CELA.

January 26, 2011. 2 p.m. EST. Making Money Beyond the Practice of Law, Rajiv Nagaich.

February 10, 2011. 2 p.m. EST. PEME — Pre-eligibility Medical Expense and Medicaid and Long-Term Care, Ron Landsman and Eric Carlson.

March 3, 2011. 2 p.m. EST. The Ins and Outs of Reverse Rule of Halves Planning, Evan Farr, CELA.

March 15, 2011. 2 p.m. EST. Document Drafting Tips for 10 Elder Law and Special Needs Planning Documents, Lee Holmes, CELA.

April 7, 2011. 2 p.m. EST. Special Needs Trusts — When a SNT Is Not the Only or Best Choice, Vincent Russo, CELA.

April 28, 2011. 2 p.m. EST. Top 10 Things You Can Do to Generate Revenue in Your Elder Law and Special Needs Planning Practice, Mark Merenda, Smart Marketing.

May 26, 2011. 2 p.m. EST. How to Build and Maintain Referral Base, Howard Krooks, CELA.

Calendar of Events

Go to www.NAELA.org for up-to-the-minute information on NAELA, Chapter, and Section events.

Congratulations to the Newest Certified Elder Law Attorneys (CELA)Robert Geimer, Green Bay, Wis.Caitlin Harper, Moon Township, Pa.Mark D. Munson, Wausau, Wis.Mary Rose Orcutt, Green Bay, Wis.Parag Patel, Iselin, N.J.

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See the complete list of seminars at www.NAELA.org.

Past NAELA Events, Telephonic Programs, and Webinars are available in video and/or audio files at the NAELA Online Education Library.

Go to www.legalspan.com/naela.

STAFF TRAINING!

PRESIDENT Ruth A. Phelps, CELA, CAP

Pasadena, [email protected]

PRESIDENT-ELECT Edwin M. Boyer, Esq., CAP

Sarasota, Fla. [email protected]

VICE PRESIDENTGregory S. French, CELA, CAP

Cincinnati, Ohio [email protected]

TREASURER Howard S. Krooks, CELA, CAP

Boca Raton, Fla. [email protected]

BOARD OF DIRECTORS: 2010–2011

SECRETARY Bradley J. Frigon, CELA, CAP

Englewood, Colo. [email protected]

PAST PRESIDENT Stephen J. Silverberg, CELA, CAP

Roslyn Heights, N.Y. [email protected]

EXECUTIVE DIRECTOR Peter G. Wacht, CAE

Vienna, [email protected]

Brian W. Lindberg Public Policy Advisor

Washington, D.C.

Hugh K. Webster, Esq. Legal Counsel

Washington, D.C.

Robert C. Anderson, CELA Marquette, Mich.

[email protected] A. Courtney, CELA, CAP

Jackson, Miss. [email protected]

Timothy P. Crawford, CELA, CAPRacine, Wis.

[email protected] Darling, CELA

Springfield, Mass. [email protected]

H. Amos Goodall, Jr., CELA State College, Pa.

[email protected] Kovacs Gruer, CELA, CAP

Great Neck, [email protected]

Franchelle Millender, CELA, CAPColumbia, S.C.

[email protected]

Rajiv Nagaich, Esq.Federal Way, Wash.

[email protected] Elena Puma, Esq.

Islandia, [email protected]

Catherine Anne Seal, CELAColorado Springs, Colo.

[email protected] H. Sheinberg, CELA

Garden City, N.Y. [email protected]

Kristi VetriBelleville, Ill.

[email protected] T. Whitehead, CELA

San Antonio, Texas Shirley B. Whitenack, Esq., CAP

Florham Park, N.J. [email protected]

DIRECTORS

CONSULTANTS

Arizona ChapterYvette N. BankerScottsdale, [email protected]

California Chapter–NorthernTricia A. Shindledecker, CELASanta Rosa, [email protected]

California Chapter–SouthernE. Bonnie Marshall, CELAGlendale, [email protected]

Colorado ChapterMarco D. ChayetDenver, [email protected]

Connecticut ChapterJoseph A. CipparoneNew London, Conn. [email protected]

Florida ChapterMark W. MazzeoVenice, [email protected]

Georgia ChapterMiles P. Hurley Atlanta, [email protected]

Illinois ChapterAmy Parise DeLaney, CELAOrland Park, [email protected]

Indiana ChapterWilliam J. Green, CELAIndianapolis, [email protected]

Kansas ChapterRandy ClinkscalesHays, [email protected]

Maryland/DC ChapterCatherine E. StavelyAnnapolis, Md. [email protected]

Massachusetts ChapterFrancis X. SmallMilford, [email protected]

Missouri ChapterTimothy J. MurphyKansas City, Mo.timothy.murphy@murphy tobin.com

New Hampshire ChapterEdward H. AdamskyTyngsboro, Mass. [email protected]

New Jersey ChapterSharon Rivenson Mark, CELA Jersey City, N.J. [email protected]

New Mexico ChapterNell Graham Sale, CELAAlbuquerque, N.M. [email protected]

New York ChapterAnthony J. Enea, CELAWhite Plains, [email protected]

New York Student ChaptersAlbany Law SchoolLauren [email protected]

New York Law SchoolElizabeth [email protected]

North Carolina ChapterWendy A. CraigBlack Mountain, [email protected]

J. Gregory WallaceRaleigh, [email protected]

Ohio ChapterRachel Anne Kabb-Effron, CELABeachwood, [email protected]

Pennsylvania ChapterJeffrey A. Marshall, CELAWilliamsport, [email protected]

South Carolina ChapterFrank J. Dana, III, CELAGreenville, [email protected]

TennesseeOlen M. BaileyMemphis, [email protected]

Texas ChapterDeborah A. GreenAustin, [email protected]

Vermont ChapterJennifer R. Luitjens, CELAS. Burlington, [email protected]

Virginia ChapterElizabeth L. Gray, CELAFairfax, [email protected]

Washington ChapterDavid H. RordenLongview, [email protected]

Wisconsin ChapterCarol J. WesselsWauwatosa, Wis. [email protected]

Chapter PresidentsFor information on NAELA Chapters, go to www.NAELA.org.

30

Web Site of InterestByMarthaC.Brown,CELA

www.AchievingIndependence.comWebsites can be a tremendous source of information

and assistance to the Special Needs and Elder Law attor-ney. I have routinely relied on certain websites to assist my educational, marketing, practice development, and other needs in my practice. One of my favorites is Steve Dale’s website www.AchieveingIndependence.com. For those of you who have not met Steve, let me introduce him to you. Steve Dale, the self-proclaimed “Grand Poohbah of Special Needs Trusts,” is a Special Needs practitioner in Walnut Creek, Calif. Steve is a tireless advocate for people with dis-abilities. One of his greatest tools in his advocacy toolbox is his website. To prepare for this article I asked Nina Jones, the website guru at the Dale Law Firm, to give me some history of the website. Nina responded as follows:

Originally AchievingIndependence.com was just a place to house PowerPoint documents so that attendees could access the information presented in Steve’s workshops. But as Steve started to learn about the production and uses of videos and the accessibility of the Internet, he found that it was an excellent medium for both professionals and the general public. The current website has evolved from that vision.

AchievingIndependence.com is a free service. Its mission is to “assist persons with disabilities to live as independently as possible, free from abuse and neglect.” Its purpose is three-fold:1. Instructional: Videos on specific subjects (such as our

currently posted Housing video which outlines the vari-ous rules and regulations surrounding housing benefits) to answer people’s questions and address their immedi-ate needs.

2. Preparatory: Such as videotapes from Steve’s workshop on Special Needs Trusts and Limited Conservatorships. These videos help families sort out and select the legal tools needed to protect their assets and to care finan-cially for their disabled loved one.

3. Outreach: Providing notifications of public speaking en-gagements, disability awareness events, action alerts, etc.Many of the videos that are on the site are used to

demonstrate a specific concept for clients and others. For instance, when a client calls the office asking questions about whether or not a Special Needs Trust can be used to pay rent, they will be directed to a video on the website that explains how a Special Needs Trust can pay rent and how to evaluate whether or not that is in the beneficiary’s best interest. There are also videos on many other subjects including how to handle UTMA accounts, the basics of public benefits and the utilization of care managers in special needs trusts.

In addition, there are full videos from workshops on Special Needs Trusts and Conservatorships that potential clients can watch prior to making an appointment to better prepare them before they meet with an attorney. At the Dale Law Firm we have found that clients who watch the videos are better prepared and can save hours in the plan-ning process.

Along with serving the general public, AchievingInde pendence.com assists professionals seeking direction on questions they might have in the very specific area of Spe-cial Needs Law.

AchievingIndependence.com will continue to evolve according to the needs of the community as we adjust to landmark changes affecting the disability world today.

Nina’s description of the Achieving Independence website is aptly stated. I urge you to visit the site and learn more. n

SPECIAL NEEDS LAW SECTION

Martha Brown, CELA, St. Louis, Mo., originally wrote this article for the Special Needs Law Section newsletter.

Join the NAELA Special Needs Law SectionThis article is contributed by the NAELA Special Needs Law Section. Join the Special Needs Law Section and get access to information and networking opportunities specific to your practice or area of interest through the Section’s biannual newsletter, sessions at NAELA meetings, and opportunities to exchange information with your peers or learn about Special Needs and Elder Law from the experts. Get involved with other NAELA members. Investigate all the Sections by visiting www.NAELA.org.

NAELA Member Benefit Program The National Academy of Elder Law Attorneys’ (NAELA) Member Benefit Program provides special offers to NAELA members on a variety of products and services.You can receive information directly from these vendors by contacting them. NAELA will announce new partners as they are approved. Meanwhile, we encourage you to take full advantage of this member service and reap the benefits of your NAELA membership!NAELA does not imply warranties to the products or services offered by Member Benefit Partners.

Amicus Creative Mediawww.amicuscreative.com 1-877-269-0076 Product Information: Comprehensive attorney web site system that includes custom web site design, search engine optimization, customizeable legal content, e-mail address setup, and domain registration. Benefit to Members: 20 percent discount off the design fee.

Bank of Americawww.newcardonline.com 1-866-738-6262 (NAELA priority code FAC6C7)Product Information: No annual fee Platinum Plus Visa card. Around-the-clock fraud protection, 24-hour service from courteous, helpful representatives, quick, secure online access to your account and free additional cards for those authorized to make charges on your account. Benefit to Members: Customized NAELA program including NAELA-branded credit card.

FedExhttps://advantagemember.visionary.com/4973/1-800-MEMBERS (1-800-636-2377, 8 am–6pm EST, M-F)NAELA passcode 6PVQPW Product information: There is no cost to enroll in the FedEx Advantage® Program and there are no minimum shipping requirements. Benefit to Members: Up to 21 percent on select FedEx Express® U.S. services. Up to 12 percent on select FedEx Ground® services. Up to 10 percent on select FedEx Home Delivery® services. If you create your shipping labels online using FedEx Ship Manager® at www.fedex.com, you can receive an additional 5 percent discount on eligible FedEx Express shipments.

Hertz1-800-654-2200 Hertz Discount CDP# 1673984 Product Information: With 7,000 locations in more than 150 countries, Hertz is able to offer special discounts on car rentals worldwide. Benefit to Members: Ten percent discount on Hertz Standard daily, weekend, weekly and monthly rates. Five percent or greater discount on Hertz Leisure daily, weekend, weekly and monthly rates.

Interactive Legal Suitewww.interactivelegal.comsales@interactivelegal.com321-252-0100Product information: Comprehensive collection of intelligent drafting systems that work synergistically, sharing data and common processes. Benefit to Members: Ten percent discount off Elder Law and Special Needs Planning. Use Promo code NAE01. In addition, license Elder Law and Special Needs Planning Professional Version and the company will pay (or reimburse) your NAELA dues for one year (applies to first year subscription only). Use Promo code NAE02.

InterCall®www.intercall.com/affinity/naela.htm1-800-514-2818, 8 am–8 pm EST.Product information: As the world’s largest conferencing services provider, InterCall® is ready to help your business save time and money with world class conferencing solutions from simple audio-conferencing to cutting edge web-conferencing platforms such as WebEx® and Microsoft Live Meeting®. Benefit to Members: You will receive exclusive member pricing on both audio and web conferencing, with toll-free audio conferencing at $.04 per minute. There are no contracts to sign or minimum spending requirements, so sign up today!

NAELA CareerCenterhttp://careers.naela.orgProduct information: Highly specialized career center provides focus to Elder and Special Needs Law firms with free search function for applicants. Benefit to Members: NAELA members receive 25 percent off a single 30-day job posting and 30 percent off multiple (three, five and ten) 30-day job postings.

Give this handy desk reference to your office manager.

For information about becoming a NAELA Member Benefit Partner, contact Casey Anderson, [email protected], or 703-942-5711, ext. 7.

1577 Spring Hill Road, Suite 220, Vienna, VA 22182

Change Service Requested

PRSRT STDUS POSTAGE

PAIDPERMIT No. 20

BURLINGTON, VT 05401

Peter J. Strauss Visionary, Architect, Guiding Light

Documents

Transcript of Peter J. Strauss Visionary, Architect, Guiding Light